Lead Opinion
^Aрpellants Paul Tucker Jr. and Andrew Raybon Tucker appeal the order of the Craighead County Circuit Court dismissing their action for an accounting of the Maurine M. Sullivant Trust (the “Trust”). On appeal, the Tuckers argue that the circuit court erred in dismissing their action for failure to comply with the Arkansas Savings Statute, codified at Ark.Code Ann. § 16 — 56—126(a)(1) (Supp.2005), because they filed an amended complaint under the same docket number of the original complaint that had been voluntarily nonsuited. We assumed jurisdiction of this case as it requires clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(b)(5) (2009). We reverse and remand.
Appellants are two of four beneficiaries of the Trust. The other two beneficiaries are Appellee Rosemary Sullivant, who is also Appellants’ aunt and trustee of the Trust, and Peggy Sullivant Tucker, Appellants’ mother. On or about April 11, 2003, Appellee decided to dissolve the Trust аnd thereafter liquidated the remaining Trust assets. Appellants filed an paction for accounting on February 20, 2004. Appellants subsequently took a voluntary non-suit, and on April 16, 2008, an order to that effect was entered.
Appellants filed an “Amended Complaint for Accounting By Trustee” on March 31, 2009. The amended complaint was filed under the same docket number as the previously nonsuited complaint. Timely service was completed. On April 28, 2009, Appellеe filed a motion to dismiss. Therein, she argued that Appellants had filed an amended complaint that was a mere recitation of the prior complaint and because the prior complaint had been dismissed, the case could not be reopened pursuant to Ark. R. Civ. P. 59 or 60, as no applicable grounds existed. Appellee further asserted that the statute of limitations, which was five years, was not tolled and any suit for an accounting had to have been filed on or before April 11, 2008. Finally, Appellee asserted that Appellants were not entitled to the benefit of the savings statute, as the filing of an amended complaint did not commence a new action. Appellants asserted that they had complied with the requirements for commencing an action, in that they filed a complaint and timely obtained service on Appellee and, thus, complied with the requirеment of the savings statute. Appellants also argued that the savings statute is remedial in nature and is to be liberally construed so as to preserve their cause of action.
A hearing was held on June 9, 2009. Appellee argued that her motion to dismiss should be granted for three reasons: (1) the amended complaint was a nullity; (2) the circuit court lacked jurisdiction to act on the amended complaint because of its prior nonsuit of the original complaint; and (3) Appellees failed to comply with the
Appellants filed a motion for reconsideration following the circuit court’s oral pronouncement. The trial court subsequently entered a written order memorializing the bench ruling and also entered a written order denying the motion for reconsideration. This appeal followed.
When а complaint is dismissed on a question of law, this court conducts a de novo review. Dollarway Patrons for Better Schs. v. Morehead,
The issue presented to this court is whether Appellants’ filing of a complaint under the same docket number, as a previously nonsuited case, constituted the commencement of a new action for purpоses of the savings statute. Appellants argue that their filing of an amended complaint under the previous docket number was sufficient to comply with the savings statute’s requirement that a new action be commenced within one year. More specifically, Appellants argue that the savings statute does not define a “new” action but that under Ark. [4R. Civ. P. 3, which provides that an action is commenced by filing a complaint with the clerk of the court, therе is no mention of a docket number. Appellee argues that the circuit court correctly dismissed the complaint because it lacked jurisdiction due to Appellants’ failure to comply with the savings statute.
We begin our analysis by reviewing the relevant provision of the savings statute, which provides as follows:
If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101 — 16-116-107, in §§ 16-114-201 — 16-114-209, or in any other act, and the plaintiff therein suffers a nоnsuit, or after a verdict for him or her the judgment is arrested, or after judgment for him or her the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed.
Ark.Code Ann. § 16-56-126(a)(l). The statute is silent as to what the commencement of a new action is, but this court has addressed the applicability of the statute on numerous occasions. Most recеntly in Rettig v. Ballard,
For purposes of the savings statute, a suit is commenced when the complaint is timely filed and service of the complaint and summons (effective or defective), is completed within the 120-day period required by [Ark. R. Civ. P.] 4(i):
In sum, to toll the limitations period and to invoke the saving statute, a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant. A court’s later ruling finding that completed service invalid does not disinherit the plaintiff from thebenefit of the saving statute. Our interpretation of § 16-56-126 meets with the liberal and equitable construction which must be given it in order to give litigants a reasonable time to renew their cause of action when they are compelled to abandоn it as a result of their own act or the court’s.
Id. at 4,
The issue of whether the filing of that new complaint under a previous docket number satisfies the commencement requirement has heretofore never been addressed. In support of its motion to dismiss, Appellee relied primarily on the court of appeals’ opinion in Technology Partners, Inc. v. Regions Bank,
This argument fails for several reasons, but we need only mention one. TPI’s lawsuit in Docket No. CV02-2845 was originally filed against Newson only. That suit was dismissed on June 17, 2002. On June 16, 2003, TPI tried to sue Regions by simply amending thе complaint in the dismissed action. According to West v. G.D. Searle & Co.,317 Ark. 525 ,879 S.W.2d 412 (1994), a new action was required to be filed, not simply an amended complaint adding a new defendant in the dismissed action. The 2002 dismissal therefore remained in effect for over one year, and Regions was not made a party to any valid lawsuit until January 2004. The saving statute therefore did not apply, as the trial court correctly ruled.
Id. at 238,
The circuit court found this case to be dispositive of the instant matter, as opposed to Hill-Rom Co. v. Swink,
Arkansas Rule of Civil Procedure 8(f) provides that “All pleadings should be liberally cоnstrued so as to do substantial justice.” The only construction that can reasonably be given to the Swinks’ “Amended Complaint” pleading is to construe it as an original complaint, because it pled a cause of action that had not been pled before, i.e., a produets-liability claim by the Swinks against Hill-Rom. Because the pleading was captioned “Amended Complaint” and bore the same case number as did the complaint against St. Bernard’s, Craig-head County may not have received an appropriate filing fee; however, such filing did not prejudice any rights of Hill-Rom.
Id. at 74,
While neither Technology Partners nor Hill-Rom are on point, we are more persuaded by the court of appeals’ opinion in Hillr-Rom. First, Technology Partners is clearly distinguishable from the situation at hand. In looking at the facts of that case, the circuit court determined that the statute of limitations began to run at the latest on February 26, 1999, and the court of appeals rejected TPI’s arguments to the contrary. Thus, when TPI tried to sue Regions via the amended complaint on June 16, 2003, the applicable three-year statute of limitations had already expired. As such, the savings statute was never triggered. In reaching its conclusion, the court of appeals relied on this court’s opinion in West v. G.D. Searle & Co.,
We simply disagree with Appellee that the holding in Technology Partners supports a conclusion that the filing of an amended complaint is insufficient to commence a new action for purposes of the savings statute. That case, and the West case that it relies on, both involved situations where a party was attempting to avail itself of the savings statute but could not do so for failure to timely file their actions.
Conversely, while Hill-Rоm is not directly on point, it is certainly more instructive to the issue in the present case. Granted, in Hillr-Rom, the amended complaint that was filed alleged a cause of
bWe note that savings statutes are remedial in nature. The savings statute reflects the General Assembly’s “intent to protect thоse who, although having filed an action in good faith and in a timely manner, would suffer a complete loss of relief on the merits because of a procedural defect.” “The savings statute extends the time for a plaintiff to correct a dismissal without prejudice when the statute of limitations would otherwise bar the suit.” It applies where “the original statute of limitations period expires in the interim between the filing of the complaint and the time аt which either a nonsuit is entered or the judgment is reversed or arrested.”
Rettig,
Here, Appellants filed a complaint within the one-year period prescribed in the savings statute. Moreover, they timely completed service of that complaint as required by Ark. R. Civ. P. 4 (2009). This court has recognized that an action is commenced by filing a complaint with the clerk of the proper court. Lyons,
Notes
. The court of appeals ultimately dismissed Hill-Rom’s appeal because it failed to appeal from a final judgment. The ultimate disposition is irrelevant, as we are concerned with the analysis set forth regarding the nature of the amended complaint.
Dissenting Opinion
dissenting.
| ml respectfully dissent. Appellants may not amend a complaint in a case in which a final judgment has been entered.
When the judgment of dismissal was entered in Craighead County Circuit Court Case No.2004-135, the case was over and closed. A voluntary dismissal constitutes a final termination of the action. Austin v. Austin,
Appellants’ amended complaint was a nullity. There was no complаint subject to
DANIELSON and WILLS, JJ., join.
Dissenting Opinion
dissenting.
I respectfully dissent. The majority concludes that neither Technology Partners, Inc. v. Regions Bank,
The cases cited and discussed by the majority, including Technology Partners, Hill-Rom, and this court’s opinion in West v. G.D. Searle & Co.,
Unless defendant has interposed a claim for affirmative relief, a voluntary nonsuit, dismissal, or discontinuance is a final termination of the action, and there remains no cause pending in which a third person may be permitted to intervene, or in which defendant may thereafter file an answer or plea. In the absence of circumstances working аn es-toppel, a dismissal or nonsuit leaves the situation as though no suit had even been brought, and it has the effect of an absolute withdrawal of the claim and leaves defendant as though he had never been a party. It carries down with it previous proceedings and orders in the action, and all pleadings, both of plaintiff and defendant and all issues, with respect to plaintiffs claim.
_Ji2Austin,
In my view, this court’s decision in West v. G.D. Searle & Co., supra, refleсts this principle. There were two appeals in West. In the first, the trial court granted summary judgment for the defendant on several claims. This court affirmed as to those claims, but modified the dismissal to reflect that it was without prejudice as the affirmance was based on the plaintiffs’ failure to state a claim on those counts (rather than on the failure to have a claim). West v. Searle & Company,
On remand, the trial court again granted summary judgment for the defendant, and again the plaintiffs appealed. This court affirmed the trial judge on those claims, but not on the merits. Rather, this court held that when the mandate issued in the first appeal, modifying the dismissal to one without prejudice, that was treated the
Here the complaint had been dismissed without prejudice for failure to state a claim, and the [plaintiffs] had one year to commence a “new action” and state a claim. Ark. |1sCode Ann. § 16-56-126 (1987). A new action had to be filed, as distinguished from merely adding a defendant by amendment, and the new complaint was subject to the provisions of the savings statute.
West,
The court of appeals relied upon West in Technology Partners, Inc. v. Regions Bank, supra, stating as follows:
TPI’s lawsuit in Docket No. CV02-2845 was originally filed against Newson only. That suit was dismissed on June 17, 2002. Onе June 16, 2003, TPI tried to sue Regions by simply amending the complaint in the dismissed action. According to West v. G.D. Searle & Co.,317 Ark. 525 ,879 S.W.2d 412 (1994), a new action was required to be filed, not simply an amended complaint adding a new defendant in the dismissed action. The 2002 dismissal therefore remained in effect for over one year, and Regions was not made a party to any valid lawsuit until January 2004. The saving statute therefore did not apply, as the trial court correctly ruled.
Technology Partners,
The exception to our long-standing precedent is the Hill-Rom case, which, relying on the rule requiring the liberal construction of pleadings, concluded that the “only constructiоn that can reasonably be given to the [plaintiffs’] ‘Amended Complaint’ pleading is to construe it as an original complaint, because it pled a cause of action that had not been pled before....” Hill-Rom,
Although the majority relies upon the liberal-construction rule, that rule of construction is not limitless. In my view, the majority expands that rule too far in concluding here that the “amended complaint” commenced a “new action” for purposes of the savings statute after the previous non-suit. I therefore respectfully dissent.